Archive for month: May, 2018

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As reported by Catherine Thompson in the Waterloo Region Record, It’ll cost about $8.6 million to rid the soil and groundwater of contaminants at the former Kitchener, Ontario Frame site.

The huge industrial site at Homer Watson Boulevard and Bleams Road has been undergoing cleanup for the past three years. The soil and groundwater were contaminated with petroleum hydrocarbons, volatile organic compounds, metals, polychlorinated biphenyls (PCBs) and polycyclic aromatic hydrocarbons (PAHs), contaminants that are often found at former industrial sites.

The former Kitchener Frame Site (Photo Credit: Philip Walker/Record staff)

The city and the developers — Gary Ball and Marty Pathak — are keen to see the site redeveloped, said Rob Morgan, the City of Kitchener’s co-ordinator of development of former industrial sites. The site of the auto parts plant variously known as Budd Canada, ThyssenKrupp Budd Canada and Kitchener Frame, has been vacant since 2009.

Redevelopment of the sprawling 32-hectare site will give a big boost to the city’s supply of industrial land, Morgan said. About 16 hectares are slated industrial, 10 hectares are retail and 1.5 hectares are office. Another four hectares will be used for things like roads and storm water management.

“It’s much-needed land,” Morgan said. “Kitchener doesn’t have a lot of vacant industrial land left to offer.” There’s a couple of parcels, on Shirley Avenue and Strasburg Road, but not much else, he said.

The former Kitchener Frame site would be the biggest property ever to apply for the program, Morgan said.

Under the program, a developer cleans up a site and redevelops it. The new development generates far more taxes than the vacant land had. The city and region hand over the additional tax revenue to the developer for a set number of years, to repay the cost of the environmental cleanup.

The site now has an assessed value of $8 million, and generates about $108,000 in property taxes a year, split roughly 40-60 between the city and the Region of Waterloo. Once it’s cleaned up and redeveloped, it’s expected to have an assessed value of around $112 million, and generate $2.2 million in municipal property taxes.

“It’s a great program,” Morgan said. In exchange for foregoing the increased taxes for a certain number of years, the city gets vacant land cleaned up and converted to a productive use that generates more taxes and jobs.

“These lands are sitting dormant, contaminated, sometimes for many years. As a resident I’d rather see it cleaned up and earning money for the tax base.”

The Kitchener Frame site will be split into 11 different parcels from 1.3 to 10 hectares. Kitchener doesn’t expect to see the first new development on the site until about 2020, and development could continue for the next 10 or 15 years beyond that.

Morgan thinks it’s likely the property will be developed well before then, though. “They’ve got a lot of interest in that property. It’s a great location, because of its proximity to the 401; you’ve got a lot of variety in the lots; Kitchener has a strong manufacturing base, and we’ve got a lot of skilled workers.”

City staff are recommending that Kitchener council approve the application, which must also be approved by regional council, likely in June.

The Ontario Ministry of Environment and Climate Change (MOECC) recently posted notice on the Environmental Bill of Rights Environmental Registry of the regulatory changes to the management of excess soil (Excess Soil Management Regulatory Proposal, ERO# 013-2774). Excess soil is soil that has been dug up, such as during excavation activities, and cannot be reused at its original site and must be moved off site. There is much controversy in the Province of Ontario and other provinces concerning the management of excess soil as there are claims and growing evidence that some companies mix clean soil with contaminated soil, some companies dispose of contaminated soil as clean soil, and other questionable practices.

The MOECC proposal clarifies where soils can be reused based on the soil characterization and aims to reduce greenhouse gasses from the transportation of soil by encouraging local reuse. The proposal also clarifies that the project leader is responsible for the management and relocation of the excess soil generated during a project to ensure proper characterization and relocation. Minor amendments to O.Reg. 153/04 and to O. Reg. 347 are also proposed.

The current proposal incorporates responses and comments from the previous proposal as well as from engagement with stakeholders and Indigenous communities. Changes from the previous proposal include:

A revised approach to waste designation

Reduced regulatory complexity and some details moved to guidance

A two to three years transition time for key regulations

Several O. Reg. 153/04 amendments to come into effect sooner

More flexibility for reuse through new reuse standards and a Beneficial Reuse Assessment Tool to develop site specific standards

This proposal is part of the MOECC’s response to the commitments outlined in Ontario’s Excess Soil Management Policy Framework. Other actions of the framework include developing priority education, outreach and training initiatives to support implementation.

The specific regulations and proposals provided for comments are summarized below:

Provide flexibility for meeting contamination standards where exceedances are cause by substances used for ice and snow safety, discharges of treated drinking water, and presence of fill that matches local background levels.

As reported by Dr. Harm Gross in the Western Investor, in British Columbia, the cost of contaminated site cleanup has grown steadily since the Contaminated Site Regulation became law on April 1, 1997. There are several reasons for this change, some of which are under the control of “persons responsible”, chiefly landowners.

An uncontrollable cost factor is the proliferation of regulations, which ballooned to an estimated 10,000 double-sided pages in British Columbia. On November 1, 2017, Stage 10 omnibus amendments to the CSR came into effect, changing concentrations deemed harmful for a broad range of contaminants and adding a significant number of new ones. This meant that work before that date would become non-compliant overnight, causing environmental consulting companies to rush over 100 submissions for a Certificate of Compliance before this deadline to grandfather their work and avoid additional costs for their clients.

Regulations pertaining to contaminated sites are not just evolving in British Columbia, but have seen substantial updates across Canada in recent years.

Saskatchewan’s updated Environmental Management and Protection Act came into effect in June 2015. This legislation thoroughly overhauled the old Act by introducing a new impacted sites registry and by providing the regulator with more power to order persons responsible to conduct site assessments.

New guidelines were also introduced in Alberta, where the regulator released a new Environmental Site Assessment Standard in March 2016.

Manitoba enacted amendments to the Province’s Contaminated Sites Remediation Regulation in April 2014. While the intended aim of these new regulations and guidelines is to move the focus towards results-based frameworks, any change and expansion of rules inevitably leads to uncertainty for stakeholders. Uncertainty particularly stems from the need of establishing precedent with the regulator when the new rules are applied in the real world. It is up to the consultant to successfully navigate their clients through the new reality and reduce uncertainty. The consultant’s knowledge of the regulations, and proficiency in correctly interpreting and applying new rules, can have significant impacts on the accuracy of cost estimates and actual costs for site assessments and remedial work.

Former bulk fuel storage leak, North Vancouver, BC

With regulations in flux and frequent changes in rules, the potential for lowering and accurately predicting costs for site remediation projects is thus of great interest to responsible persons. The potential savings by inviting an experienced review of proposed remediation plans can be significant. At one site the savings for a client was $15 million; more commonly, savings are in the 6-figure or low 7-figure range. Incorrect investigative work is the most frequent source of error. This ranges from faulty field techniques when sampling groundwater wells, through unfamiliarity with laboratory methods for distinguishing man-made from naturally occurring substances, to inadequate comprehension of the myriad environmental regulations. Investigating contaminants requires great care when the difference between contamination and no contamination is measured at the extremely low concentrations of parts per million in soil, or the even lower concentrations of parts per billion in water. We have seen numerous examples where mistakes have tarred a site.

The public sector is no less prone to erroneous estimations of remediation cost. In April 2014, the parliamentary budget officer reported that the federal government has underestimated the cost of cleaning up contaminated sites under its jurisdiction by at least $2 billion, putting the total liability for contaminated sites to almost $7 billion. This was due to the fact that many sites in the inventory had yet to be assessed. While it seems relatively self-evident that proper site investigations are a prerequisite and absolute must for cost estimates to be accurate, such oversights are unfortunately abundant in the private sector. All too often consultants provide flimsy cost estimates based on incomplete or deficient investigative data.

Businesspeople frequently complain about the irritation of unreliable cost estimates, and rightfully so – nowhere is this more prevalent than in the environmental consulting industry.

Technical experts are often loathe to accept responsibility for cost estimates for fear of finding undiscovered contamination, running into regulatory snafus or overlooking issues which later prove substantial.

Next Environmental has taken the unprecedented step of providing fixed price quotes for a comprehensive scope of work at each step of investigation or remediation, thus entirely eliminating the cost uncertainties for clients. This service, unique in the contaminated sites business, is possible due to the skillful application of regulatory proficiency to address the business needs of clients. Time will tell whether this cost control measure spreads to other firms.

Dr. Harm Gross is the owner and President NEXT Environmental Inc. He is currently a Registered Professional Biologist (R.P.Bio) and an Approved Professional of the Contaminated Sites Approved Professionals Society (CSAP Society), and has a wealth of experience obtaining Ministry Instruments and other environmental certifications for NEXT’s Clients. NEXT provides environmental consulting services including investigation, remediation and risk assessment of contaminated property for clients throughout BC and Alberta.

The Mackenzie Pulp Mill Corporation recently pleaded guilty, in the Provincial Court of British Columbia, to depositing a deleterious substance into water frequented by fish, in violation of the pollution-prevention provisions of the Fisheries Act. The company was ordered to pay a penalty of $900,000, which will be directed to the federal Environmental Damages Fund. This funding is to be used for the conservation of fish or fish habitat in the Omineca region of British Columbia. The company was also ordered to complete an independent audit of its operations to prevent future incidents of this kind.

The offence relates to incidents in July 2014 and September 2016, when effluent discharging from the Mackenzie Pulp Mill was found to be deleterious to fish. Environment and Climate Change Canada enforcement officers investigated the incidents, and their investigation revealed that the mill’s treatment system had not properly treated the effluent before discharging it, due in part to improper management of the wastewater entering the treatment system. The effluent was deposited into Williston Lake, which is frequented by fish.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry. The Environmental Offenders Registry contains information on convictions of corporations registered for offences committed under certain federal environmental laws.

Big River First Nation was recently sentenced to pay a fine of $100,000 in the Provincial Court of Saskatchewan for failing to comply with an environmental protection compliance order concerning the Miami Gas Bar, a company owned and operated by the Big River First Nation. An environmental protection compliance order is an order under the Canadian Environmental Protection Act, 1999, which directs various measures be taken to stop or prevent a violation of the Act or its regulations.

The conviction stems a 2014 inspection by Officers from Environment Canada and Climate Change (ECCC) to verify compliance with the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations under the Canadian Environmental Protection Act, 1999. As a result of the investigation, the ECCC Officers issued an environmental protection compliance order. Charges were subsequently laid when the compliance order was not followed. In court, Big River First Nation pleaded guilty to failing to comply with measures identified in the order.

The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations aim to reduce the risk of spills and leaks of petroleum products from storage tank systems, which can contaminate soil and groundwater. The Regulations apply to storage tank systems operated by a federal department, board, agency, or Crown corporation; storage tank systems providing services to federal works or undertakings that are a port authority, airport, or railway; and storage tank systems located on federal or Aboriginal lands.

TDY Holdings, LLC brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial and allocated 100 percent of past and future CERCLA costs to TDY. On appeal, the Ninth Circuit held that the district court sharply deviated from the two most “on point” decisions regarding allocation of cleanup costs between military contractors and the U.S. government when it determined the cases were not comparable, clarified the applicability of those cases, and remanded the case to reconsider the appropriate allocation of cleanup costs between TDY and the U.S. government.

TDY (formerly known as Ryan Aeronautical Company) owned and operated a manufacturing plant near the San Diego airport

From 1939 through 1999, TDY (formerly known as Ryan Aeronautical Company) owned and operated a manufacturing plant near the San Diego airport. TDY’s primary customer was the U.S. government—99 percent of TDY’s work at the plant between 1942 and 1945, and 90 percent of the work thereafter was done pursuant to contracts with the U.S. military. The United States also owned certain equipment at the site from 1939 to 1979. Id. at 1006. Chromium compounds, chlorinated solvents, and polychlorinated biphenyls (PCBs) were released at the site as a result of their use during manufacturing operations. Id. In some cases, the government’s contracts required the use of chromium compounds and chlorinated solvents. Id. After passage of the Clean Water Act and other environmental laws classifying these chemicals as hazardous substances in the 1970s, TDY began environmental remediation and compliance at the site and billed the government for the “indirect costs” of that work, which the government paid. Id. at 1006–07. TDY incurred over $11 million in response costs at the site. Id. at 1007. Until the plant’s closure in 1999, the government reimbursed 90 to 100 percent of TDY’s cleanup costs at the site. Id. at 1007, 1010.

In 2004, the San Diego Unified Port District brought CERCLA claims against TDY. TDY and the Port District entered into a settlement agreement in March 2007 in which TDY agreed to cleanup releases at the site. TDY then brought suit for contribution under 42 U.S.C. § 9613(f)(1) and declaratory relief against the United States. Id. at 1007. The district court granted TDY’s motion for partial summary judgment declaring that the United States was liable as a past owner of the site under CERCLA. Id. After a 12-day bench trial on equitable allocation of costs, the district court held that the contamination caused by the hazardous substances at issue was attributable to TDY’s storage, maintenance, and repair practices, as well as spills and drips that occurred in the manufacturing process, rather than to the government’s directives to use the chemicals. Id. Accordingly, the district court allocated 100 percent of the past and future response costs for remediation of the three hazardous substances to TDY. Id. at 1008.

On appeal, TDY argued that the district court erred (1) when it allocated liability according to “fault”; (2) that the government’s role as owner rather than operator should not have been a dispositive factor in the court’s allocation, and (3) that the government should bear a greater share of response costs because it specifically required use of the chemicals at the site. Id. The court of appeals summarily rejected TDY’s first two arguments, but found that the district court did err in its analysis and application of binding authority on point: United States v. Shell Oil Co., 294 F.3d 1045 (9th Cir. 2002) and Cadillac Fairview/California, Inc. v. Dow Chem. Co., 299 F.3d 1019 (9th Cir. 2002). Id. at 1008–09. Shell Oil and Dow Chemical each produced products to support the U.S. military during World War II and incurred liability for contamination caused by hazardous chemicals that the government required to be used. In both cases, the Ninth Circuit affirmed the district courts’ allocation of 100 percent of cleanup costs to the government because “the contractors’ costs were ‘properly seen as part of the war effort for which the American public as a whole should pay.’” Id. at 1009.

The Ninth Circuit disagreed with the district court’s conclusion that Shell Oil and Cadillac Fairview were not comparable, but agreed that some deviation from their allocations were appropriate. Id. The Ninth Circuit agreed that the government exercised less control over TDY than it did over Shell Oil Co. or Dow Chemical. In support of this determination, the court noted that the government was an operator, rather than an owner, of TDY’s site, that the government-owned equipment was removed from the site 20 years before TDY ceased operations, and that TDY’s own practices at the site caused the contamination. Id. at 1010. Furthermore, the district court properly determined that “industrial operations undertaken for the purpose of national defense, standing alone, did not justify allocating all costs to the government.” Id.

However, the Ninth Circuit held that, in allocating 100 percent of cleanup costs to TDY, the district court failed to consider that the government required TDY to use two of the three chemicals at issue beginning in the 1940s, when the need to take precautions against environmental contamination from these substances was not known. Id. Furthermore, the Ninth Circuit determined that “[t]he court’s acknowledgement of the evolving understanding of environmental contamination caused by these chemicals, and TDY’s prompt adoption of practices to reduce the release of hazardous chemicals into the environment once the hazards became known, further undercuts the decision to allocate 100 percent of the costs to TDY.” Id. The district court also failed to consider the parties’ lengthy course of dealing through 1999, when the government paid between 90 and 100 percent of cleanup costs at the plant. Id. Although “a customer’s willingness to pay disposal costs . . . cannot be equated with a willingness to foot the bill for a company’s unlawful discharge of oil or other pollutants,” the Ninth Circuit nevertheless determined it should have been a relevant factor in the allocation analysis. Id.

Whitney Jones Roy is a litigation partner in firm’s Los Angeles office. Ms. Roy was recognized by Law360 as a “Female Powerbroker” and by the Daily Journal as one of the Top 100 Women Lawyers in California in 2014. Ms. Roy has experience in all aspects of California and federal civil procedure through trial. She also defends her clients on appeal when necessary. Ms. Roy also specializes in complex environmental litigation and related products liability litigation. Her expertise includes the Clean Air Act, CERCLA, RCRA, design defect, failure to warn, negligence, nuisance, and trespass.

Whitney Hodges is an associate in the Real Estate, Land Use and Natural Resources Practice Group in the firm’s San Diego office. She also serves on the firm’s Diversity and Inclusion Committee, Pro Bono Committee, Recruiting Committee, Energy, Infrastructure and Project Finance Team and Latin Business Team. Ms. Hodges specializes in the representation of clients involved in real estate development. Her practice focuses on advising and representing major residential, industrial, commercial and mixed-use development projects, as well as Native American Indian tribes and renewable energy developers through all phases of the land use regulatory process and environmental compliance.

In late 2015, a heating, ventilation, and air conditioning (HVAC) contractor was installing an HVAC system on the flat roof of a warehouse in Georgia. The installation was to take place adjacent to several unguarded skylights covered only with plastic sheeting. While the onsite foreman had fall protection equipment in his truck, the employees did not wear any fall protection equipment while on the roof. These circumstances ended in tragically: one of the workers fell through a skylight and died as a result of his injuries.

The Occupational Safety and Health Administration (OSHA) cited the employer for a willful violation of 29 C.F.R. § 1926.501(b)(4)(i) for failing to protect its employees from falls. The administrative law judge concluded the supervisor’s actions supported a willful classification in that he demonstrated a “reckless disregard for the safety of his crew.” The employer appealed.

To support a willful classification, OSHA must show either (1) the employer knew of the standard and consciously disregarded it or (2) it exhibited such reckless disregard for the employees’ safety that the employer would not have cared that the conduct violated the standard. Evidently, the supervisor claimed ignorance of the law, and the court analyzed whether the willful classification could be supported under the second standard.

Air conditioner units (HVAC) on a roof of industrial building

The court of appeals was unimpressed by the employer’s arguments. The court noted the supervisor was well aware of the danger posed by the unguarded skylights in that he warned his employees to be careful around them. The supervisor also testified it was his practice not to use fall protection equipment on flat roofs. The supervisor neither instructed anyone to wear fall protection equipment nor provided his employees with the fall protection equipment he had in his truck. Thus, the Court concluded, while the supervisor did not know of the standard’s requirements, he exhibited such reckless disregard for employee safety that he would not have cared that the conduct violated the standard.

This is where all employers may want to take heed. The court went on to observe that the supervisor’s “unfamiliarity serves, if anything, only to underscore the inadequacy of [the employer’s] training program. To hold that such inadequacy—and the resulting unfamiliarity—precludes classification of a violation as willful would perversely allow [the employer] to use its ineffective training as a defense against OSHA’s most serious charge.” The court upheld the willful classification.

Needless to say, a willful citation can have far-reaching ramifications for an employer—from tort liability and criminal penalties for the injury or death to inability to secure future work. While training may seem trivial and time consuming, doing it just might prevent a willful citation and possibly save a life.

This article was originally published on the Ogletree Deakins website.

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About the Author

Mr. Tisdale has wide experience in general civil and employment litigation. This experience ranges from advising clients on preventive measures to avoid formal charges and lawsuits, and representing clients before the United States Court of Appeals, to handling individual employment discrimination cases before the Equal Employment Opportunity Commission and the federal courts as well as handling wrongful discharge and other employment-related litigation in state and federal courts. He regularly represents employers on safety and health matters including advising and defending clients on OSHA compliance issues involving Federal OSHA and state plan states. He regularly assists clients with contract disputes and non-compete and trade secrets advice and litigation. His experience also includes counseling clients on wage and hour compliance under the Fair Labor Standards Act and performing compliance audits under the FLSA, drafting and reviewing employment contracts and employment

The U.S. EPA Office of Superfund Remediation and Technology Innovation recently published a fact sheet about an emerging remedial technology that applies a combination of activated carbon (AC) and chemical and/or biological amendments for in situ remediation of soil and groundwater contaminated by organic contaminants, primarily petroleum hydrocarbons and chlorinated solvents. The technology typically is designed to carry out two contaminant removal processes: adsorption by AC and destruction by chemical and/or biological amendments.

With the development of several commercially available AC-based products, this remedial technology has been applied with increasing frequency at contaminated sites across the country, including numerous leaking underground storage tank (LUST) and dry cleaner sites (Simon 2015). It also has been recently applied at several Superfund sites, and federal facility sites that are not on the National Priorities List.

The fact sheet provides information to practitioners and regulators for a better understanding of the science and current practice of AC-based remedial technologies for in situ applications. The uncertainties associated with the applications and performance of the technology also are discussed.

AC-based technology applies a composite or mixture of AC and chemical and/or biological amendments that commonly are used in a range of in situ treatment technologies. Presently, five commercial AC-based products have been applied for in situ subsurface remediation in the U.S.: BOS-100® & 200® (RPI), COGAC® (Remington Technologies), and PlumeStop® (Regenesis) are the four most commonly used commercial products. CAT-100® from RPI is the most recent product, developed based on BOS-100®. One research group in Germany also developed a product called Carbo-Iron®. The AC components of these products typically are acquired from specialized AC manufacturers. These types of AC have desired adsorption properties for chlorinated solvents and petroleum hydrocarbons. Different products also have different AC particle sizes, which determine the suitable injection approach and the applicable range of geological settings.